In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 2 June 2015

Richard Prince Re-purposed?

Readers may well be
familiar with Richard Prince who is described as an appropriation
artist. We have featured him (here and here) on several previous occasions on this blog, as well as on the IPKat. In his most recent
controversial exhibition
Prince took images from various social media sites such as Instagram
and Facebook and blew them up to be large enough to hang on a gallery
wall, along with a suitable price tag in the region of $100,000. The
only change Prince made to these works was to add a comment of his own which did
not appear in the original posting. It is argued by some that this
addition, plus the fact that Prince's 'works' now hang in an art
gallery, is sufficient to invoke the fair use defence of being
transformative. To date none of the individuals whose images have
been appropriated have chosen to test this assertion in court.

However one, a model
named Selena Mooney, has chosen to play Prince at his own game by
offering a replica of Prince's 'work' based on her image, for sale at
$90 while the price tag on the Prince piece is $90,000. In fact her
replica is not identical to that of Prince, because she has
included another comment after his; in other words she has reproduced her own
Instagram posting in a larger size, but in a way which references
Prince's work.

This has led to all
sorts of speculation about whether her work infringes Prince's. Some
maintain that it must do, because she has not done enough by way of
alteration for it to be transformative. This seems bizarre: Prince
adds a comment and this is felt to be transformative, yet if Mooney
adds a further comment that's not transformative? The issue appears to
revolve around the purpose of the two works, or three if you include
Mooney's original image on Instagram. The image on Instagarm was just
that, something posted to elicit a smile or a comment from anyone who
saw it. It had no real intrinsic 'market' value. It might have had
some slight cachet amongst fans of Miss Mooney who has appeared on
the SuicideGirls website (https://www.suicidegirls.com/ for the curious but it's not safe for workplace viewing), but barring her elevation to greater
celebrity status, it is argued the original picture per se has no
real ability to earn Miss Mooney any money. The argument then runs
that Prince is such a sought-after artist that anything he does
immediately turns his work into a "Work of Art" and
this is evidenced by the fact his works hang on a Madison Avenue gallery
wall and command these multi thousand dollar prices. Mooney's version
of the Prince work, so the argument goes, is now operating in the
same arena as his and since the level of transformation (that is, the extra comment) is insubstantial, the other Fair Use factors
become determinative. These factors are:

The purpose and
character of Mooney's use and whether this is commercial in nature,

The nature of the
underlying work,

The amount and
substantiality of the portion which is used by Mooney, and

The effect of the use
on the potential market for or value of, the copyrighted work.

From this, assuming
that Prince's print qualifies for copyright due to it being
transformative, Mooney's print falls down badly in respect of these
other factors, in that the character of her use is the same as
Prince's (that's the whole point of it), the nature of his and hers
are the same ('work of art'), she has used the whole of
his work and by under-cutting his price, her work would have a
detrimental effect on the value of his.

That at least is the
argument put forward by some.
However it rather overlooks the fact that hers was the original work.
There is clearly some debate to be had about whether or not she owns
the copyright in the original photograph of her which was clearly
taken by someone else, but let's assume copyright has been assigned
to her. She therefore has the right to publish her own work in
whatever form she chooses, and this right isn't limited by the fact
that Prince has already entered that market with his own work. It's
not as if he has been granted an exclusive licence to sell his image
which excludes the owner of the original from which his work is
derived, from also entering that market. And of course her entry into
the same market does not undermine the value of his work for the
simple reason that anyone who has a spare $90,000 and wants a Prince
work, is not going to buy a 'Mooney' instead. It's a shame that this
seems unlikely to go to court, because it would be fascinating to see
how the US legal system would deal with this conundrum.

Mooney is not the only
one to take on Prince at his own game. Someone else who had his
picture appropriated was artist Sean Fader, who decided to send out a
press release cheekily
inviting people to come and view his work at an exhibition organised
by Richard Prince.

3 comments:

Anonymous
said...

Prince's work should be considered an infringing derivative work, in which case he holds no copyrights in the unauthorized derivative work, and the original author can do what she wants with it. The Second Circuit's transformative use test has gone too far, and these are the absurd things that happen as a result.

Most of the comment posts on this has been about copyright, I haven't come across anything on the issue of personality rights. The thought of seeing a huge blown up version of a 'selfie' (that was posted on Instagram & intended to amuse your friends,) on an art gallery wall wouldn't be pleasing to most people and this was without their permission? So how does personality rights affect this case?

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